Introduction

Derived from Latin term tortum (to twist; implying conduct which is twisted or tortious)
He who commits a tort is a Tort Feasor
The act/misdoing is called tortious act
Important Definitions1 :
No definition is complete/correct. Various attempts, but none are satisfactory.
Winfield talks of unliquidated damages2 as the remedy, however there are other remedies within
Tort Law (such as injunction, self help, restitution etc.). It also does not account for cases of
vicarious liability. Salmonds definition is also incomplete with respect to remedies.
i.

ii.

iii.

Prof. P H Winfield, Tortious Liability arises from breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressable by an action for
unliquidated damages.
Sir John Salmond defined Tort as a civil wrong for which the remedy is common law action
for unliquidated damages and which is not exclusively the breach of contract or the breach
of trust or other merely equitable obligation.
Fraser: A tort is an infringement of a legal right in rem of a private individual, giving a right
of compensation of the suit of the injured party.

Tort vs Contract
Criteria

Tort

Contract

Consent

With or without consent

Consensus ad idem

Violation of

Rights in rem (imposed by law and

owed to community at large)

Rights in personam (fixed by will

and consent of parties and owed
to specific person/s)

Remedy

Unliquidated damages, exemplary

damages, injunction, self help etc.

Performance of contract/
damages

Aim of the law

Allocation and/or prevention of

losses

Promises made under a contract

are performed

Privity

No privity is needed

Privity between parties

necessary

Based on the same facts, an act can be both a tortious act and a breach of contract. The fact that
there is a contractual relationship between the parties which may give rise to an action for breach
of contract does not exclude the co-existence of a right of action founded on tort, as between the
same parties, independently of the contract, though arising out of the relationship3

Tort vs Crime

http://www.lawnotes.in/Definition_of_Tort

Unliquidated damages refers to damages that are computed by the court. Liquidated damages refers to a
specific sum as damage
3

White vs. John Warrick & Co. Ltd.

Tort and crime are similar at the primary level. In both cases, the primary duty to not commit an
offence (or tortious act) is in rem and is imposed by law.
Criteria

Tort

Crime

Violation of

Violation of private or civil rights

belonging to individuals considered
as individuals

Breach of public rights and duties

and which affect the whole
community considered as a
community

Remedy

Compensate injured party

Punished by the State in the

interest of the society

Action

Brought by the injured party

Proceedings in the name of the

State and punished by the State

Compensation as a
remedy

Primary remedy to make good the

harm. Exemplary damages are the
only element of punishment; but
awarded in severely restricted cases

Ancillary. If compensation, then

they are unliquidated in nature.

Codification

Judge made law, based on

precedence

Codified in the form of Indian

Penal Code, CrPC, Evidence etc.

Same acts can be Torts and Crimes, from different points of view. For instance, there is bodily
injury. You have the right to be compensated for the harm so caused to you. However, the offender
is also a risk to the public (and its safety) and that is where the State will come in and punish the
offender. The definition of the act as a tort and as a crime may differ and hence the defense taken
in each may also differ.

Constituents of a Tort
To constitute a tort or a civil injury :
there must be a wrongful act committed by a person
the wrongful act must give rise to legal damage or actual damage
the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an
action for damages
A) Wrongful Act
The act complained of should affect the legal right of the party complaining. The crucial test of a
legally wrongful act or omission is its prejudicial effect on the legal right of another.
Legal rights are faculties that are reside in a particular party and are granted by law. Types of
legal rights :
Private rights : Rights which belong to a particular person to the exclusion of the world at
large. Includes rights of reputation, rights of bodily safety and freedom and rights of property
Public rights : Rights which belong in common to the members of the State generally.
Every infringement of private right denotes that an injury or wrong has been committed,
which is imputable to a person by whose act, omission or forbearance, it has resulted. But
when a public right has been invaded, no action will lie unless in a addition to the injury to the
public, a special, peculiar and substantial damage is occasioned to the plaintiff.
The remedy for the public is indictment, for, if every member of the public were allowed to
bring action in respect of such an invasion, there would be no limit to the number of actions
that could be brought

To every right there corresponds an obligation or a duty. If the right is legal, so is the obligation; if
the right is contingent, imaginary or moral, so is the obligation. A right in its main aspects consists
in doing something, or receiving and accepting something. Consequently, an obligation consists in
performing some act or in refraining from performing an act.
The duty with which the law of torts os concerned is the duty to abstain from wilful injury (intention),
to respect the property of others and to use due diligence in avoid causing harm to others
(negligence). Liability for a tort arises, therefore, when the wrongful act complained of
amounts either to an infringement of a legal private right or a breach or violation of a legal
duty.
B) Damage
Damage means the harm or loss suffered or presumed to be suffered by a person as a result of
some wrongful act of another.
From the point of view of Damage, rights are classified as absolute or qualified.
In case of absolute rights or private legal rights, there is a presumption of damage (even if
the person has suffered no pecuniary loss or injury). The presumed damage is called legal
damage. The proof of damage is not required and a violation of absolute rights is actionable
per se.
In case of qualified rights, there is no presumptions of damage. The violation of such right is
actionable only if there is proof of actual or special damage
Hence in cases of absolute rights, the tort is established/complete as soon as the violation of
the right occurs (ie: the wrongful act); whereas in case of qualified rights, the tort is established/
complete only when the wrongful act leads to actual/special damages.

Two important maxims : injuria sine damno and damnum sine injuria
damnum - damage; injuria - tortious act
Injuria sine damno
The infringement of an absolute private right without any actual loss or damage; the person
whose right is infringed has a cause of action
Every person has an absolute right over his property, to the immunity of his person and to his
liberty. An infringement of these will lead to an action per se
There is no burden to prove that actual or special damage or loss was suffered; the damage is
presumed as soon as the act occurs. The injury itself implies the damage
In these cases, the court has to provide at least nominal damages if no actual damage is proved
If there is merely a threat of infringement of a legal right without the injury being complete, the
person whose right has been threatened can bring a suit under the provisions of the Special
Relief Act for declaration and injunction
Ashby v. White : The plaintiff was a legally qualified voter and the defendant was an officer at the
polling booth. The defendant wrongfully refused to register the duly tendered vote of the plaintiff.
The candidate for whom the vote was tendered was elected and hence no damage/loss was
suffered by the plaintiff. However, a cause of action still lay as a legal right had been violated and
the returning officer had acted maliciously
A legal wrong is committed if a person entitled to be upon an electoral roll is wrongfully omitted
from such roll, so as to deprive him of his right to vote. In such a case, a cause of action would
lie4
An action will lie against a banker who refuses to honour a cheque, drawn on an account with
sufficient funds - even though there is no damage/loss incurred
Other examples - trespass, libel
4

Municipal Corporation of Agra vs Asharfi Lal

Damnum sine injuria

The presence of actual and substantial loss/damage without any infringement of legal right; no
cause of action can be brought in these cases
Mere loss of money or moneys worth does not of itself constitute a tort. There are many acts
which, though harmful, are not wrongful and give no right of action
Where an act is lawfully or legally done, without any negligence, and in the exercise of a legal
right, damage occurs to another - it would be damage without injury
Hence, loss or damage is not a ground of action, unless it is a result of a species of wrong of
which the law takes cognisance. In suit for damages on a tort, the plaintiff cannot succeed merely
on the ground of damage unless he can show that the damage was caused by a violation of his
legal right
Thus, if I have a school and my neighbour opens another school, because of which I suffer
monetary loss in profits; I cannot bring an action against him even though damage was caused
Even when a group of traders collude to drive a fellow trader out of the market by offering special
terms to customers; the aggrieved party will not succeed in a cause of action as no legal right
has been infringed. Damage done by competition in trade is not actionable
The servants of a temple had a right to the food that was offered to the idol. The individual who
normally offered the food, stopped offering the food.The servants sued the offeree for damages.
The offeree was under no legal obligation to supply food to the temples servants and hence no
legal right was violated. While there was damage to the servants; it was damnum sine injuria
The consequence of the two maxims is that there are moral wrongs for which the law gives no
legal remedy though they may cause great loss or damage; and on the other hand, there are legal
wrongs for which the law gives a remedy, even if there is no real or actual damage that has been
suffered. In cases of violation of an absolute right, the tort is actionable per se. But in case of
violation of a qualified right, the actual damage suffered is a key ingredient of a tort (the wrong is
said to be complete only when it is accompanied by actual damage)

C) Remedy
A tort is a civil injury, but not all civil injuries are torts. The wrongful act must come under the
category of wrongs for which there is a remedy in civil action
Maxim : ubi jus ibi remedium (there is no wrong without a remedy); jus - legal authority to do;
remedium - remedy
If a man has a right, he must have a remedy in case he is injured in the exercise or enjoyment of
it. It is a vain thing to imagine a right without a remedy. Generally in law, there is no right without
a remedy and in case all remedies for enforcing a right are gone, then the right from a practical
point of view ceases to exist
Wherever a man has a right, the law should provide a remedy and the absence of a remedy is
evidence but not conclusive that no right exists
However, the maxim should not be construed to mean that for every moral or political wrong,
there exists a legal remedy. There is no remedy for promises made without consideration, for
some kinds of verbal slander, nor for damage caused to life and property inflicted by a cruel and
unjust war. The case of time barred debt is one where there is a wrong, but no remedy is
available. Without a remedy, there is no right to claim the debt
Perhaps, it would be more correct to say that where there is no legal remedy, there is no legal
wrong
In tort, the relief that is mostly available is that of unliquidated damages (i.e. damages that are
set/decided by the court). Alternate reliefs are also available in the form of self help, restitution,
injunction (temporary or permanent) and recovery
Law of Torts vs Law of Tort/General Principle of Liability
Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm
to other persons in the absence of some specific ground of justification or excuse OR does it

consist of a number of specific rules prohibiting certain kinds of harmful activity and leaving all
residue outside the sphere of legal responsibility
Salmond : Preferred second option - specific acts are tortious. Hence his book was called Law of
Torts and not Law of Tort. Pigeon Hole Theory.
Winnfield : Preferred first option - broad principle. From a broader outlook there was validity in
the theory of a fundamental general principle of liabilitythe law of tort has grown over centuries,
and is still growing, then some such principle seems to be at the back of it.